Is Constitutionalism Liberal?

Abstract

Let me begin with the obvious: I am not claiming that any scholar, or educated person, believes that the only constitutions that have ever existed have been liberal. Everyone knows or should know that, for example, the Greek constitutions of Solon, Lycurgus, and others discussed in Aristotle’s Politics predate liberalism by many centuries. Moreover, constitutions come in a wide variety of forms, and many of these, whether written or unwritten, have explicitly been illiberal.

What I maintain is that there is a prejudice among lawyers in particular that constitutions must be liberal in order to be worthy of the name. To be fully legitimate, likely to last, and worthy of support, on this view, a constitution must embody certain principles, namely rule by consent, the rule of law, mechanisms limiting governmental power, and individual rights. Yet none of these putatively liberal goods are in fact liberal. Indeed, all that is liberal in “liberal” constitutionalism is an insistence that only individual rights be recognized, and that these rights be read so as to maximize individual autonomy and equality. The result is a concentration of power in the state that undermines the essential virtues of and necessary for constitutionalism. Here I begin by reviewing the monolithic nature of liberal constitutional interpretation, proceed to review the claims and reality of “liberal” constitutional goods, then examine the impact of liberal individualism on the essentials of constitutionalism.